People v. Radford , 2018 IL App (3d) 140404 ( 2019 )

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Appellate Court Date: 2019.02.21
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People v. Radford, 2018 IL App (3d) 140404
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption TAVARIUS D. RADFORD, Defendant-Appellant.
District & No. Third District
Docket No. 3-14-0404
Filed July 13, 2018
Rehearing denied August 9, 2018
Decision Under Appeal from the Circuit Court of Kankakee County, No. 11-CF-662;
Review the Hon. Clark Erickson, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier and Steven P. Varel, of State Appellate Defender’s
Appeal Office, of Ottawa, for appellant.
James R. Rowe II, State’s Attorney, of Kankakee (Patrick Delfino and
Gary F. Gnidovec, of State’s Attorneys Appellate Prosecutor’s Office,
of counsel), for the People.
Panel JUSTICE SCHMIDT delivered the judgment of the court, with
opinion.
Justice Wright concurred in the judgment and opinion.
Justice McDade dissented, with opinion.
OPINION
¶1 A jury convicted defendant, Tavarius D. Radford, of felony child endangerment (720
ILCS 5/12-21.6(a) (West 2010)), for which the trial court sentenced him to 42 months in
prison. Defendant now appeals his conviction. First, defendant argues that the State’s
evidence failed to prove his guilt beyond a reasonable doubt. Second, he contends that the
trial court plainly erred by issuing a child endangerment jury instruction that misstated the
requisite mens rea or, in the alternative, counsel provided ineffective assistance by not
objecting to the instruction. Finally, defendant claims the trial court violated his right to a
public trial by partially closing the courtroom during voir dire and, later in the trial, asking
journalism students in the audience to find a seat or leave the courtroom. For the following
reasons, we affirm defendant’s conviction.
¶2 BACKGROUND
¶3 The State charged defendant with murder and child endangerment after his 26-month-old
daughter died from traumatic head injuries on October 26, 2011. Around 10 a.m. that
morning, Kayleigh Reardanz found her daughter, M.R., unresponsive in their Bourbonnais
apartment. By the time she reached the hospital, M.R. had fallen into cardiac arrest. After
attempting to resuscitate her, the treating physician pronounced M.R. dead shortly after 11
a.m. The forensic pathologist who performed M.R.’s autopsy concluded that blunt head
trauma from child abuse caused her death. M.R.’s death certificate described her manner of
death as homicide due to child abuse. Defendant’s jury trial began November 18, 2013.
¶4 Prior to voir dire, the trial court recognized that, although jury selection is a public
proceeding, the courtroom could not accommodate over 90 potential jurors and spectators
present for the proceedings. The record indicates that M.R.’s family members and other
members of the public regularly attended pretrial hearings. Due to the nature of the case, the
trial court also noted that the large congregation of spectators with “emotions running high”
risked contaminating the jury pool.
¶5 The court observed that the spectators appeared equally divided between those who
supported defendant and those who did not. In an effort to preserve defendant’s public trial
right and proceed with jury selection, the court asked all spectators, except two who
supported defendant and two who did not, to leave the courtroom. The court let the spectators
decide who would remain in the courtroom. Neither defendant nor his counsel objected to
this partial closure.
¶6 Kayleigh testified that she, defendant, and M.R. lived in the Bourbonnais apartment for
approximately one month before M.R.’s death. They lived in the apartment with Kayleigh’s
grandparents, Cheryl and David Heather, and close friends, Kimberly and Echo Brewington.
On October 26, 2011, Kayleigh found M.R. unresponsive around 10 a.m. Her skin was blue
in color and very cold. Kayleigh became upset and yelled for help. She called 911 and
handed the phone to Kimberly. Before the ambulance arrived, David attempted to resuscitate
M.R. by performing CPR. Doctors pronounced M.R. dead just after 11 a.m.
¶7 Kayleigh spoke with police at the hospital and again days after M.R.’s death. During
these conversations, Kayleigh did not disclose M.R.’s prior falls or medical history. She
testified that she believed M.R. died from sudden infant death syndrome (SIDS), so she did
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not think to disclose M.R.’s prior falls to police. After M.R.’s autopsy revealed that she died
from head trauma caused by child abuse, police interviewed Kayleigh a third time. This time,
she informed police of M.R.’s prior falls and medical history.
¶8 Kayleigh testified that M.R. was born in August 2009. Soon after, M.R. developed a blue
sclera and grew to be unusually large for her age. Her pediatrician believed these symptoms
were consistent with osteogenesis imperfecta (brittle bone disease) and recommended a
blood test and appointment with a geneticist. When Kayleigh and defendant received M.R.’s
blood test results, they decided not to consult the geneticist.
¶9 In January or February 2011, M.R. fell down and hit her head while defendant babysat
her. Defendant took M.R. to the emergency room; Kayleigh met him there. M.R.’s computed
tomography (CT) scans were negative, and the treating physician discharged her. Kayleigh
noticed a “knot” on M.R.’s forehead at the hospital.
¶ 10 Kayleigh also testified that M.R. “split her eyebrow open” later in 2011 while Kayleigh’s
friend babysat. Then, on Easter in 2011, M.R. slipped in Kayleigh’s mother’s bathtub and
“busted her chin.” M.R. went to the emergency room after both falls.
¶ 11 In September 2011, M.R.’s pediatrician diagnosed her with mild anemia. On October 13,
Kayleigh again took M.R. to her pediatrician due to a large rash on her chest. Kayleigh
pointed out bite marks on M.R.’s arm where she bit herself. The pediatrician believed that
capillary hemangiomas caused M.R.’s rash. M.R.’s self-harm stemmed from a behavioral
issue unrelated to the rash. The rash subsided the next day, so defendant and Kayleigh never
took M.R. to undergo bleeding and bruising panels that her pediatrician ordered.
¶ 12 On October 22, M.R. fell and hit her head on the pavement while playing outside with
Kayleigh. Kayleigh examined M.R.’s head but saw no injury; she did not take M.R. to the
hospital. However, she kept M.R. awake for at least one hour after the fall in case she
sustained a concussion.
¶ 13 Kayleigh also testified that M.R. fell the day before her death. She threw herself
backwards during a tantrum and hit her head on the pavement. After the incident, M.R.
complained of head pain. While Kimberly and Kayleigh were styling M.R.’s hair later that
night, M.R. complained of pain when they touched the back of her head. Cheryl, Kimberly,
and Kayleigh examined M.R.’s head but did not see any indication of injury. Although
Kayleigh stated these events occurred the day before M.R.’s death, Echo testified that it
occurred on October 23, three days before M.R.’s death.
¶ 14 Kayleigh stated that she worked from 3 p.m. until 11 p.m. on October 25. When she
returned to the apartment after work, she noticed M.R. whimpering and shaking. Kayleigh
asked M.R. if she was in pain; she indicated that she was not. M.R. commonly shook when
she became impatient, so Kayleigh was not alarmed by M.R.’s behavior. Kayleigh
discovered M.R. unresponsive the next morning.
¶ 15 Cheryl testified that Kayleigh took her to the grocery store in the early afternoon on
October 25. M.R. was asleep when Cheryl and Kayleigh returned to the apartment before 3
p.m. After quickly getting ready, Kayleigh left for work around 3 p.m. At around 5 p.m.,
Cheryl agreed to watch M.R., who was still asleep, while defendant and Echo biked to
Kankakee.
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¶ 16 Echo testified that she and defendant were gone for at least two hours—they biked to a
friend’s house, purchased marijuana, and smoked it in a nearby park. M.R. was still asleep
when defendant and Echo returned to the apartment around 7 p.m.
¶ 17 Although defendant did not testify on his own behalf, the jury viewed his videotaped
police interview. Before the jury viewed the interview, journalism students from a local
university entered the courtroom to observe the proceedings, specifically the interview. The
trial court asked the students to “find a place to sit” or they would have to leave the
courtroom. The record does not indicate whether any of the students left the courtroom.
¶ 18 During the interview, defendant told police that he tucked M.R. in for a nap before 3 p.m.
on October 25. A few minutes later, defendant returned to check on M.R. She was playing
with a wooden unicorn plaque instead of sleeping. Defendant grew angry at M.R.’s
insubordination and tucked her in “kind of roughly.” He immediately apologized to M.R. and
told her that he loved her.
¶ 19 Defendant told police that he did not believe M.R. could have been injured when he
tucked her in. He speculated that she may have hit her head on the wooden plaque, but he
was uncertain. However, when defendant demonstrated his action toward M.R. on a stuffed
bear, he told police the demonstration was less aggressive than how he tucked M.R. in
because he did not want to hurt the bear.
¶ 20 Defendant also told police that M.R.’s naps would typically last between 60 and 90
minutes; on October, 25, she slept for at least 4 hours. She seemed to have no appetite and
ate very little at dinner after she awoke from her nap. Defendant also told police that M.R.
may have vomited after dinner, but he could not remember for certain.
¶ 21 Two experts presented crucial testimony regarding M.R.’s manner of death. Dr. Valerie
Arangelovich, the forensic pathologist who performed M.R.’s autopsy, opined that abuse
caused M.R.’s fatal head trauma. Dr. Shaku Teas, an experienced forensic pathologist,
disagreed with Arangelovich’s conclusion and criticized her methods. Teas found no signs of
child abuse in M.R.’s autopsy record.
¶ 22 Specifically, Teas disagreed with Arangelovich’s conclusion that M.R.’s fatal injuries
occurred within 24 hours of her death. Arangelovich found subgaleal and subdural injuries in
M.R.’s brain—both experts agreed that the subdural injuries directly caused M.R.’s death.
Both experts also agreed that the subgaleal injuries were likely old injuries. Arangelovich
found iron when she sampled M.R.’s subgaleal injuries. Iron in adult injuries indicates the
injury is at least three days old; there is no accepted iron-testing scale for children.
¶ 23 Arangelovich also observed “very rare” fibroblasts in M.R.’s subdural injuries. In adults,
fibroblasts do not appear until at least three days after sustaining an injury. In children,
fibroblasts can occur naturally or in response to an injury. Arangelovich could not determine
whether the fibroblasts presented naturally or in response to M.R.’s subdural injuries; nor
could she opine with reasonable certainty whether the adult fibroblast timeline also applies to
children. However, Arangelovich opined that M.R.’s subdural injuries occurred within 24
hours of her death due to their color and lack of healing.
¶ 24 Teas testified that it was impossible to determine when M.R. sustained her subdural
injuries because Arangelovich failed to take blood and tissue samples from the periphery of
M.R.’s injuries, where healing typically begins. According to Teas, taking samples
exclusively from the center of an injury does not provide necessary data to determine the
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injury’s age. Teas noted multiple signs of healing in Arangelovich’s samples of M.R.’s
subdural injuries. Teas opined that these signs of healing in the center of M.R.’s subdural
injuries indicate that the injuries’ periphery would likely show additional healing that would
more accurately determine their age. From this evidence, Teas opined that M.R.’s subdural
and subgaleal injuries were “definitely” more than 24 hours old when she died—M.R.
sustained them before defendant “roughly” tucked her in on October 25. Teas also opined
that Arangelovich’s autopsy file did not definitively show that abuse, rather than accidental
falls, caused M.R.’s fatal injuries.
¶ 25 At the close of evidence, the State tendered a jury instruction on involuntary
manslaughter. Defense counsel conceded that defendant had no basis to object because
involuntary manslaughter is a lesser-included offense of murder. The trial court issued the
instruction. The jury acquitted defendant of murder and involuntary manslaughter but
convicted him of child endangerment.
¶ 26 Defendant was 17 years old when M.R. died. His presentence report contained letters
from friends, relatives, neighbors, and teachers who stated that defendant was a good kid
who would never hurt anyone. Although defendant admitted during his police interview that
he smoked marijuana, he had no criminal history. No witness testified that defendant abused
M.R. prior to October 25, 2011. The trial court sentenced him to 42 months in prison. After
defendant’s sentencing hearing, the trial court denied his motion to reconsider. This appeal
followed.
¶ 27 ANALYSIS
¶ 28 Defendant makes three arguments challenging his conviction. First, he claims that the
State failed to prove him guilty beyond a reasonable doubt. Specifically, defendant argues
that even if his actions proximately caused M.R.’s death (which he disputes), the State failed
to prove defendant willfully or knowingly endangered M.R.’s life. Second, defendant asserts
that the trial court erred by instructing the jury that child endangerment’s state-of-mind
element requires “willfully,” rather than “knowingly,” causing or permitting a child’s life or
health to be endangered. Defendant argues the trial court’s misleading instruction constituted
plain error or, in the alternative, his counsel provided ineffective assistance by failing to
object. Finally, defendant claims the trial court denied him a public trial when it partially
closed the courtroom during voir dire and, later in the trial, when it instructed journalism
students to find a seat or leave the courtroom. We address each argument in turn.
¶ 29 I. Sufficiency of the Evidence
¶ 30 When a defendant challenges the sufficiency of the evidence supporting his conviction,
the standard of review is whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the offense’s essential elements
proven beyond a reasonable doubt. People v. Pollock, 202 Ill. 2d 189, 217 (2002). Reviewing
courts do not retry defendants, reweigh trial evidence, or otherwise undermine the fact
finder’s judgment. People v. Tenney, 205 Ill. 2d 411, 428 (2002). A conviction will stand
unless the evidence is so improbable, unsatisfactory, or inconclusive that it creates a
reasonable doubt of the defendant’s guilt. People v. Evans, 209 Ill. 2d 194, 209 (2004).
¶ 31 The State charged defendant with felony child endangerment. The State had to prove that
(1) M.R. was in defendant’s care or custody, (2) defendant willfully caused or permitted
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M.R.’s life to be endangered, and (3) defendant’s acts proximately caused M.R.’s death. See
720 ILCS 5/12-21.6 (West 2010). Defendant claims that the State failed to prove that his
actions proximately caused M.R.’s death or that he willfully endangered M.R.’s life.
¶ 32 A. Proximate Cause
¶ 33 In support of his proximate cause argument, defendant claims that he “presented a strong
case that M.R.’s death was caused by an accidental fall,” not by his action. He emphasizes
Kayleigh’s trial testimony stating that M.R. suffered head injuries from accidental falls
before her death. He also highlights Dr. Teas’s opinion that M.R.’s fatal injuries occurred
more than 24 hours prior to her death, before defendant tucked her in “kind of roughly.” Teas
also opined that M.R.’s injuries did not show signs of abuse.
¶ 34 On the other hand, Dr. Arangelovich opined that M.R.’s fatal injuries occurred within 24
hours of her death. She also opined that abuse caused M.R.’s injuries. Combining
Arangelovich’s opinion with defendant’s police interview, the State presented an “eggshell
skull” theory; M.R.’s prior falls and medical issues made her more susceptible to fatal head
trauma but did not cause her death. According to the State, defendant’s admittedly aggressive
act, tucking M.R. in “roughly,” endangered her life and proximately caused her death.
¶ 35 Essentially, this issue turned on the jury’s perception of opposing expert opinions. Other
trial evidence and testimony did not overwhelmingly support either expert’s opinion.
Although testimony regarding M.R.’s prior falls tends to support Dr. Teas’s opinion,
Kayleigh did not disclose M.R.’s prior falls to police until her autopsy report concluded she
was abused. The jury could have reasonably discredited this testimony. Moreover,
Arangelovich agreed with Teas that M.R. had preexisting head injuries when she died; the
experts disagreed as to whether new injuries caused her death.
¶ 36 The jury apparently agreed with Dr. Arangelovich. We do not find her expert opinion to
be improbable, unsatisfactory, or inconclusive. See Evans, 209 Ill. 2d at 209. Viewing the
evidence in the light most favorable to the State, we hold that the evidence sufficiently
supported the jury’s finding that defendant’s actions proximately caused M.R.’s death.
¶ 37 B. State of Mind
¶ 38 Defendant argues that his videotaped police interview clearly demonstrates that, even if
his actions proximately caused M.R.’s death, he did not willfully harm her. As defendant
points out, acting “willfully,” to satisfy the requisite mental culpability for child
endangerment, is synonymous with acting “knowingly.” People v. Jordan, 218 Ill. 2d 255,
270 (2006); see also 720 ILCS 5/4-5(b) (West 2012). A person acts “knowingly” when he or
she knows that his or her conduct is practically certain to cause the result. People v. Dorsey,
2016 IL App (4th) 140734, ¶ 34 (citing People v. Psichalinos, 229 Ill. App. 3d 1058, 1067
(1992)). The jury may infer intent from circumstantial evidence. People v. Williams, 165 Ill.
2d 51, 64 (1995). “The defendant is presumed to intend the natural and probable
consequences of his acts ***.” People v. Terrell, 132 Ill. 2d 178, 204 (1989).
¶ 39 The trial evidence, viewed in the light most favorable to the State, showed that defendant
knew his aggressive physical act toward his 26-month-old daughter endangered her life or
health. Defendant acted on his own volition when he “roughly” tucked M.R. into her daybed.
During his police interview, he demonstrated tucking M.R. in by using a stuffed teddy bear.
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After defendant’s first demonstration, he admitted that he tucked M.R. in harder than in the
demonstration because he did not want to hurt the bear. During the second demonstration,
defendant applied noticeably more force.
¶ 40 Defendant became frustrated because M.R. would not lie down for her nap, so he
“roughly” forced her into her daybed. His apology to M.R. after forcing her into her daybed
indicates that he knew he could have injured her. He also knew M.R.’s medical history and
understood she might be more susceptible to injury than other infants. Based on the evidence,
the jury could reasonably conclude that defendant willfully endangered M.R.’s life or health.
¶ 41 II. Jury Instruction
¶ 42 Defendant also argues that the trial court denied him a fair trial by issuing an erroneous
child endangerment jury instruction. Following Illinois Pattern Jury Instructions, Criminal,
Nos. 11.29, 11.30 (4th ed. 2000) (hereinafter IPI Criminal 4th), the instruction stated that
defendant should be found guilty of child endangerment if the jury concluded, beyond a
reasonable doubt, that he assumed care or custody over M.R., “willfully caused or permitted”
M.R.’s life to be endangered, and his acts proximately caused M.R.’s death. The trial court
did not tender IPI Criminal 4th No. 5.01B, which states: “Conduct performed knowingly or
with knowledge is performed willfully.” Defense counsel made no objection. Defendant
claims that the instruction’s use of “willfully” rather than “knowingly” in the absence of IPI
Criminal 4th No. 5.01B was plain error. Alternatively, defendant argues that counsel
provided ineffective assistance by not objecting to the allegedly erroneous instruction.
¶ 43 Illinois Supreme Court Rule 451(c) (eff. July 1, 2006) states that “substantial defects” in
jury instructions “are not waived by failure to make timely objections thereto if the interests
of justice require.” Rule 451(c) is coextensive with the plain-error clause in Illinois Supreme
Court Rule 615(a). People v. Keene, 169 Ill. 2d 1, 32 (1995); People v. Jackson, 2015 IL App
(3d) 140300, ¶ 53 n.3. Defendant must demonstrate that the trial court’s instruction
constituted “clear or obvious error” that denied him a fair trial. People v. Downs, 2015 IL
117934, ¶¶ 14-15; see also Ill. S. Ct. R. 615(a). A fair trial is not necessarily a perfect trial.
People v. Herron, 215 Ill. 2d 167, 177 (2005).
¶ 44 For over a decade, Illinois courts have held “willful” conduct to be synonymous with
“knowing” conduct for child endangerment offenses. Jordan, 218 Ill. 2d at 270. Between
M.R.’s date of death (October 26, 2011) and defendant’s trial (November 18, 2013), the
General Assembly codified Jordan by changing the requisite state of mind for child
endangerment from “willful” to “knowing.” Pub. Act 97-1109, §§ 1-5 (eff. Jan. 1, 2013);
compare 720 ILCS 5/12-21.6 (West 2010), with 720 ILCS 5/12C-5 (West 2012). However,
the amendment did not substantively change the law; “willful” and “knowing” reflect the
same state of mind for child endangerment offenses.
¶ 45 At its core, defendant’s challenge argues that the jury reached inconsistent verdicts. The
crux of defendant’s argument is that the term “willfully” conveyed to the jury a less culpable
state-of-mind requirement than “knowingly.” By finding defendant not guilty of murder, the
jury concluded defendant did not “know” his actions would likely kill M.R. or cause her
great bodily harm. Based on the murder verdict, defendant claims the jury would not have
concluded he “knowingly” endangered M.R.’s life or health.
¶ 46 Defendants may not challenge a jury’s verdict by claiming it is inconsistent. People v.
Jones, 207 Ill. 2d 122, 133-34 (2003). When a jury’s verdict is inconsistent, “it is unclear
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whose ox has been gored.” United States v. Powell, 469 U.S. 57, 65 (1984). A court can only
speculate as to the jury’s rationale in reaching its verdict without impermissibly injecting
itself into the jury’s deliberations. Id. at 65-66. Further, appellate courts’ authority to
independently review the sufficiency of the prosecution’s evidence guards against unlawful
convictions. Id. at 67.
¶ 47 Here, we determined the State’s evidence sufficiently supported defendant’s child
endangerment conviction. We decline defendant’s invitation to speculate as to whether the
jury would have reached a different verdict had the instruction said “knowingly” rather than
“willfully.” In fact, the evidence sufficiently supported a murder conviction; we cannot know
whether the verdict was the result of juror lenity to defendant’s benefit or the jury’s
interpretation of an instruction to his detriment. Regardless, the trial court’s instruction
accurately stated the law—“willfully” and “knowingly” are synonymous in child
endangerment cases. We do not find the trial court’s instruction to be “clear or obvious
error.” Downs, 2015 IL 117934, ¶ 15. Nor do we find that counsel provided ineffective
assistance by failing to object to a jury instruction that accurately stated the law.
¶ 48 III. Public Trial
¶ 49 Defendant’s final argument asserts that the trial court violated his right to a public trial
(U.S. Const., amend. VI) when it partially closed the courtroom during voir dire and, while
the State presented its evidence, asked journalism students to find a seat or leave the
courtroom.
¶ 50 Prior to bringing over 90 potential jurors into the courtroom, the trial court recognized
that jury selection is a public proceeding but the courtroom could not accommodate the
potential jurors and the large congregation of citizens attending the proceedings. The trial
court also expressed concern that the citizens with “emotions running high” risked
contaminating the jury pool. The court ordered a partial closure during jury selection; two
people who supported defendant and two who did not could remain in the courtroom and sit
behind the potential jurors.
¶ 51 Later in the trial, prior to the State playing defendant’s videotaped police interview, the
court asked journalism students in attendance to find a seat or leave the courtroom. The
record does not indicate whether any student left the courtroom; we cannot know whether a
closure occurred. We find that without proof a student left the courtroom, the court’s
admonishment cannot support defendant’s public trial claim. We address only the partial
closure during voir dire below.
¶ 52 Defendant admits that neither he nor his counsel objected to the court’s partial closure.
He maintains that his failure to object creates neither a knowing and voluntary waiver of his
public trial right nor a forfeiture of the issue on appeal. Even if he forfeited the issue,
defendant argues the partial closure constituted second-prong plain error, an error so serious
that it affected the fairness of the trial and challenged the integrity of the judicial process. Ill.
S. Ct. R. 615(a); People v. Piatkowski, 225 Ill. 2d 551, 564-65 (2007).
¶ 53 Defendant’s multilayered argument requires some unpeeling before addressing the fruit
of its merit. First, we agree that defendant’s failure to object to the trial court’s partial closure
did not amount to a knowing, intelligent, and voluntary waiver of his right to a public trial.
See Walton v. Briley, 361 F.3d 431, 433-34 (7th Cir. 2004). Had defendant waived his public
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trial right, our analysis would be complete. See People v. Bannister, 232 Ill. 2d 52, 71
(2008).
¶ 54 Although defendant did not waive his right to a public trial, he forfeited the issue on
appeal by not contemporaneously objecting or raising the issue in a posttrial motion. People
v. Thompson, 238 Ill. 2d 598, 611-12 (2010). We must determine whether our plain-error
doctrine excepts defendant’s forfeiture. To constitute second-prong plain error, the alleged
error must deprive the defendant of a fundamentally fair trial or undermine the integrity of
the judicial process. Ill. S. Ct. R. 615(a); Piatkowski, 225 Ill. 2d at 564-65.
¶ 55 Because public trial rights are “structural,” violations are not subject to harmless error
analysis. Weaver v. Massachusetts, 582 U.S. ___, ___, 137 S. Ct. 1899, 1907-08 (2017);
Waller v. Georgia, 467 U.S. 39, 49 n.9 (1984). However, other than the government’s
prohibition from arguing an error was harmless, “the term ‘structural error’ carries with it no
talismanic significance as a doctrinal matter.” Weaver, 582 U.S. at ___, 137 S. Ct. at 1910.
¶ 56 Despite not being subject to harmless error analysis, public trial violations are subject to a
“triviality standard.” Peterson v. Williams, 85 F.3d 39, 42 (2d Cir. 1996). “A triviality
standard, properly understood,” looks to “whether the actions of the court and the effect that
they had on the conduct of the trial deprived the defendant—whether otherwise innocent or
guilty—of the protections conferred by the Sixth Amendment.” Id. The protections conferred
by the public trial guarantee are (1) to ensure a fair trial, (2) to remind the prosecutor and
judge of their responsibility to the accused and the importance of their functions, (3) to
encourage witnesses to come forward, and (4) to discourage perjury. Waller, 467 U.S. at
46-47. Not every courtroom closure results in an unfair trial, nor does each closure affect the
values underlying the sixth amendment’s public trial guarantee. See Weaver, 582 U.S. at ___,
137 S. Ct. at 1910.
¶ 57 Defendant argues that automatic reversal is required where a court excludes anyone from
a public proceeding unless (1) the party seeking to close the proceedings advances an
overriding interest that is likely to be prejudiced, (2) the closure is no broader than necessary
to protect that interest, (3) the trial court considers reasonable alternatives to closing the
proceeding, and (4) the trial court makes findings adequate to support the closure. See
Waller, 467 U.S. at 48. Further, defendant cites People v. Evans, 2016 IL App (1st) 142190,
¶ 18, for the proposition that a courtroom’s limited seating is not an “overriding interest”
justifying excluding any citizen from a proceeding. However, Evans is distinguishable from
this case in two ways. First, defense counsel in Evans contemporaneously objected to the
closure. Second, the Evans trial court maintained a standard practice of closing the courtroom
during voir dire. Here, counsel did not object to the partial closure, and the trial court’s
partial closure was, according to the record, prompted by unusually large public attendance
in this specific case.
¶ 58 The United States Supreme Court has recently recognized that the problems trial courts
face “in deciding whether some closures are necessary, or even in deciding which members
of the public should be admitted when seats are scarce, are difficult ones.” Weaver, 582 U.S.
at ___, 137 S. Ct. at 1909. The Court also recognized that potential errors in making these
difficult decisions can be cured or more thoroughly addressed when a defendant
contemporaneously objects to a courtroom closure. Id. at ___, 137 S. Ct. at 1909-10. In other
words, without contemporaneous objection, the trial court would not likely cure a violation
or formally express its findings on the record.
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¶ 59 In this case, the trial court’s partial closure neither deprived defendant of a fair trial nor
undermined the integrity of the judicial process. The partial closure implicated none of the
values underlying defendant’s right to a public trial. Four citizens, not including the jury,
remained in the courtroom during voir dire, and the courtroom was open to all citizens for
the remainder of defendant’s trial. Defendant raises “no suggestion that any juror lied during
voir dire; no suggestion of misbehavior by the prosecutor, judge, or any other party; and no
suggestion that any of the participants failed to approach their duties with the neutrality and
serious purpose that our system demands.” Id. at ___, 137 S. Ct. at 1913.
¶ 60 We hold that the trial court’s partial closure during voir dire was trivial. Defendant does
not suggest, nor does the record indicate, that the partial closure implicated a single value the
public trial guarantee aims to protect. Defendant’s claim that a courtroom’s available seats
can never justify a closure defies reality and would, if accepted, stifle courts’ duty to
administer justice. Absent clear error, defendant is not entitled to automatic reversal based
upon a constitutional claim for which we have little record due to his failure to object: “Due
regard generally for the public nature of the judicial process does not require disregard of the
solid demands of the fair administration of justice in favor of a party who, at the appropriate
time and acting under advice of counsel, saw no disregard of a right, but raises an abstract
claim only as an afterthought on appeal.” Levine v. United States, 362 U.S. 610, 619-20
(1960). We see no clear error in this case.
¶ 61 CONCLUSION
¶ 62 For the foregoing reasons, we affirm the judgment of the circuit court of Kankakee
County.
¶ 63 Affirmed.
¶ 64 JUSTICE McDADE, dissenting:
¶ 65 Defendant argues, inter alia, that his right to a public trial was violated when the trial
court excluded all but four members of the public from the voir dire proceeding and, later,
ordered journalism students to leave the courtroom during the trial. I agree with the majority
that we cannot determine if a closure occurred when the court ordered the journalism
students to leave the courtroom because the record is unclear on whether they actually left.
However, I disagree with the majority’s finding that defendant’s right to a public trial was
not violated when the trial court excluded members of the public from voir dire.
¶ 66 The facts show that the trial court decided—without a request from either party or the
consent of the defendant—to close the entire voir dire proceedings to members of the public
except two individuals from defendant’s family and two individuals from the victim’s family.
The court reasoned that, because of its preference to seat the entire jury venire in the
courtroom at once, there were only enough remaining seats to accommodate four members of
the public.
¶ 67 Our society has a strong interest in public trials. Gannett Co. v. DePasquale, 443 U.S.
368, 383 (1979). In a public trial, “ ‘the public may see [a defendant] is fairly dealt with and
not unjustly condemned, and *** the presence of interested spectators may keep his triers
keenly alive to a sense of their responsibilities and to the importance of their functions.’ ”
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(Internal quotation marks omitted.) Waller v. Georgia, 467 U.S. 39, 46 (1984) (quoting In re
Oliver, 333 U.S. 257, 270 n.25 (1948)). A public trial also “encourages witnesses to come
forward and discourages perjury.” Id. The sixth amendment’s right to a public trial was
created for the benefit of the defendant, and a court cannot deprive defendant of this right
without his consent. Id.; People v. Harris, 302 Ill. 590, 592-93 (1922). The right to a public
trial extends to voir dire proceedings. Presley v. Georgia, 558 U.S. 209, 212-13 (2010).
¶ 68 “While all trials are presumed to be open, the right is not absolute.” People v. Burman,
2013 IL App (2d) 110807, ¶ 51. To justify closing a trial proceeding, we examine whether
(1) there exists an “overriding interest that is likely to be prejudiced,” (2) the closure is no
broader than necessary to protect that interest, (3) the trial court considered “reasonable
alternatives” to closing the proceeding, and (4) the trial court made adequate findings to
support the closure. (Internal quotation marks omitted.) People v. Evans, 2016 IL App (1st)
142190, ¶ 10 (quoting People v. Willis, 274 Ill. App. 3d 551, 553 (1995), quoting Waller, 467
U.S. at 48). The overriding interest required by Waller also applies to partial closures. People
v. Cooper, 365 Ill. App. 3d 278, 282 (2006) (citing People v. Taylor, 244 Ill. App. 3d 460,
464 (1993)). The majority touches on Waller’s overriding interest and other factors in
addressing defendant’s argument, but I believe additional analysis is necessary in
determining whether the closure was justified.
¶ 69 Considering the Waller factors, I would find that the closure was not justified for three
reasons. First, the reason the court gave for deciding to exclude nearly all members of the
public from voir dire was that it wanted to seat the entire venire in the courtroom and
“[t]here’s only so many seats.” This is not an overriding interest. Having the entire venire in
the courtroom at the same time is a function of the court’s preference and
convenience—factors that surely do not override a defendant’s constitutional right to a fair
and public trial. Moreover, the issue of the number of seats in a courtroom is “solely a matter
of logistics and convenience for courtroom personnel” and “has no positive effect on the
fairness of the trial.” Evans, 2016 IL App (1st) 142190, ¶ 12. Also, although defendant
challenges the trial court’s closure solely as violative of his rights under the sixth
amendment, the excluded spectators, who had chosen to attend and to observe the
proceedings, also had a constitutional interest in an open trial. The Supreme Court has held
that the right to a public trial “extends beyond the accused and can be invoked under the First
Amendment.” Presley, 558 U.S. at 212 (citing Press-Enterprise Co. v. Superior Court of
California, 464 U.S. 501 (1984)). It is also well established that the “Sixth Amendment right
of the accused is no less protective of a public trial than the implicit First Amendment right
of the press and public.” Waller, 467 U.S. at 46.
¶ 70 Second, the court did not articulate adequate findings to support the closure. Indeed, it
articulated no findings; it removed the public because it wanted to do so. The court cannot
arbitrarily burden a defendant’s right to a fair trial or the implicit first amendment right of the
public and press to an open trial. It must identify an interest that overrides those rights and
articulate “ ‘findings specific enough that a reviewing court can determine whether the
closure order was properly entered.’ ” Presley, 558 U.S. at 215 (quoting Press-Enterprise
Co., 464 U.S. at 510). Here, the court’s stated reason does not even pretend to identify an
“overriding” need served only by having the entire venire present in the courtroom at the
same time and moving the public out because of the resulting lack of seats. Nor does the
court indicate how such an interest would be prejudiced by, for example, working with
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panels, or other smaller configurations, of jurors. It is impossible to ascertain from the court’s
simple statement what overriding interest was at stake and how that interest would be
prejudiced without the nearly total exclusion of the public from the jury selection
proceedings.
¶ 71 Third, the court failed to consider any reasonable alternative to its partial closure. “Trial
courts are obligated to take every reasonable measure to accommodate public attendance at
criminal trials.” Id. Here, if a larger courtroom that could seat the venire and the public was
unavailable, the court could have called the jurors into the room in smaller groups or asked
individuals to stand until the size of the venire was reduced and seating became available.
See Evans, 2016 IL App (1st) 142190, ¶ 15. If the courthouse has no courtrooms large
enough to accommodate the public, the press, and the entire venire, perhaps the county
should look into enhanced audio or other technology.
¶ 72 The majority finds Evans inapplicable because the defense counsel in Evans objected to
the closure whereas no objection was made in this case.1 Evans, 2016 IL App (1st) 142190,
¶ 3. I do not see how this distinction is relevant. A failure to object does not preclude this
court from reviewing defendant’s constitutional claim for plain error. See People v. Jones,
2014 IL App (1st) 120927, ¶ 40 (although defendant failed to object to the closure, the
reviewing court analyzed defendant’s constitutional challenge for plain error). Furthermore,
the trial court has a responsibility to ensure defendant receives a fair trial, and defendant’s
failure to object should not relieve it of this responsibility. See Evans, 2016 IL App (1st)
142190, ¶ 14 (“Given the seriousness of the potential harm, each trial judge must be alert and
proactive in managing his or her courtroom to prevent violations of this core constitutional
right, regardless of whether attorneys assist in the process.”).
¶ 73 The majority also finds that the partial closure was trivial because defendant did not
provide evidence that he was denied the constitutional protections listed above. The majority
further states that the record is devoid of evidence that the partial closure violated
defendant’s constitutional protections. Illinois courts have found that a temporary closure
was “trivial” when the closure was brief or minimal. See Jones, 2014 IL App (1st) 120927,
¶ 45 (finding that the trial court’s brief in camera questioning of two potential jurors was
trivial); People v. Webb, 267 Ill. App. 3d 954, 959 (1994) (holding that the closure was trivial
because spectator missed “a few minutes of discussion” at trial); see also Peterson v.
Williams, 85 F.3d 39, 44 (2d Cir. 1996) (ruling that defendant’s sixth amendment rights were
not violated because the closure was “extremely short,” the spectators were given a follow-up
summation, and the closure was inadvertent). However, closure is not trivial when it occurs
for the entirety of the voir dire proceedings. See Evans, 2016 IL App (1st) 142190, ¶ 17
(“What occurred here is in no way a ‘trivial’ closure. Ms. Peterson missed the entirety of jury
selection, including questioning of potential jurors and a number of peremptory
challenges.”).
1
The majority also states that Evans is inapplicable to this case because “the Evans trial court
maintained a standard practice of closing the courtroom during voir dire.” Supra ¶ 57. My reading of
Evans does not reveal any basis for this statement. In Evans, the reviewing court speaks of one instance
in which the defendant’s step-grandmother was asked to leave the courtroom before voir dire
proceedings. Evans, 2016 IL App (1st) 142190, ¶¶ 3-4. There is no reference to the trial court’s
standard practice of closing the courtroom in Evans.
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¶ 74 Here, the trial court excluded all spectators except four individuals prior to the voir dire
proceedings, and the excluded spectators were denied an opportunity to view any portion of
the proceedings. This closure was not trivial or de minimis; it was a nearly complete denial of
defendant’s right to have the public present for the voir dire of prospective jurors. Id.
Therefore, I would hold that an error occurred, enabling plain-error review because the trial
court violated defendant’s right to a public trial.
¶ 75 Defendant asserts that the trial court’s violation constituted second-prong plain error. The
majority applies the Weaver Court’s ruling to defendant’s challenge under the second prong
of plain-error review and finds that defendant did not show that the partial closure affected
the fairness of his trial and the integrity of the judicial process. See Weaver v. Massachusetts,
582 U.S. ___, ___, 137 S. Ct. 1899, 1911 (2017). I disagree with the majority’s decision. The
Court in Weaver determined that, although a violation of the right to a public trial is
structural error, the automatic reversal requirement does not extend to the Strickland test
because the violation does not always lead to a fundamentally unfair trial as is necessary to
meet the prejudice prong. Id. at ___, 137 S. Ct. at 1911 (“when a defendant raises a
public-trial violation via an ineffective-assistance-of-counsel claim, Strickland prejudice is
not shown automatically”).
¶ 76 The Strickland test is not at issue in this case. It is well established that a violation of a
defendant’s right to a public trial is structural error. The United States Supreme Court
established that a violation of a public trial is structural because of the “ ‘difficulty of
assessing the effect of the error.’ ” Id. at ___, 137 S. Ct. at 1910 (quoting United States v.
Gonzalez-Lopez, 548 U.S. 140, 149 (2006)). The Court further found that the violation is
structural error because it protects the interest of the public at large, the press, and the
defendant. Id. at ___, 137 S. Ct. at 1910 (citing Press-Enterprise Co. v. Superior Court of
California, 464 U.S. 501, 508-10 (1984)). The Illinois Supreme Court also recognized that a
violation of the right to a public trial is structural error (Thompson, 238 Ill. 2d at 609) and
that automatic reversal is required when an error is deemed “structural” (People v. Glasper,
234 Ill. 2d 173, 197 (2006)).
¶ 77 Our supreme court “equated the second prong of plain-error review with structural error.”
Thompson, 238 Ill. 2d at 613. The court further classified structural error as “a systemic error
which serves to ‘erode the integrity of the judicial process and undermine the fairness of the
defendant’s trial.’ ” (Internal quotation marks omitted.) Id. at 614 (quoting Glasper, 234 Ill.
2d at 197-98). In other words, a violation of the right to a public trial, in essence, affects the
fairness of the defendant’s trial and undermines the integrity of the judicial process as
required under the second prong of plain-error review. As stated previously, I would find that
the trial court violated defendant’s right to a public trial and that this violation is structural
error. Based on our supreme court’s ruling, I would find that defendant met the second prong
of plain-error review. Because automatic reversal is required when an error is deemed
structural and because the evidence, reviewed in the light most favorable to the State, was
sufficient to find defendant guilty beyond a reasonable doubt, I would reverse defendant’s
conviction and remand for a new trial. People v. Willis, 274 Ill. App. 3d 551, 554 (1995)
(“The sixth amendment protects all portions of the trial, including voir dire, and the
appropriate remedy for improper closure is a new trial.”).
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